OCTOBER TERM, 1998
Syllabus
SAENZ, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, ET
AL.
v. ROE ET AL., ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 98-97. Argued January 13, 1999-Decided May 17, 1999
California, which has the sixth highest welfare benefit levels
in the country, sought to amend its Aid to Families with Dependent
Children (AFDC) program in 1992 by limiting new residents, for the
first year they live in the State, to the benefits they would have
received in the State of their prior residence. Cal. Welf. &
Inst. Code Ann. § 11450.03. Although the Secretary of Health and
Human Services approved the change-a requirement for it to go into
effect-the Federal District Court enjoined its implementation,
finding that, under
Shapiro v.
Thompson, 394 U. S. 618, and
Zobel v.
Williams, 457 U. S. 55, it penalized
"the decision of new residents to migrate to [California] and be
treated [equally] with existing residents,"
Green v.
Anderson, 811 F. Supp. 516, 521. After the Ninth Circuit
invalidated the Secretary's approval of § 11450.03 in a separate
proceeding, this Court ordered
Green to be dismissed. The
provision thus remained inoperative until after Congress enacted
the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA), which replaced AFDC with Temporary Assistance to
Needy Families (TANF). PRWORA expressly authorizes any State
receiving a TANF grant to pay the benefit amount of another State's
TANF program to residents who have lived in the State for less than
12 months. Since the Secretary no longer needed to approve §
11450.03, California announced that enforcement would begin on
April 1, 1997. On that date, respondents filed this class action,
challenging the constitutionality of § 11450.03's durational
residency requirement and PRWORA's approval of that requirement. In
issuing a preliminary injunction, the District Court found that
PRWORA's existence did not affect its analysis in
Green.
Without reaching the merits, the Ninth Circuit affirmed the
injunction.
Held:
1. Section 11450.03 violates § 1 of the Fourteenth
Amendment.
Pp.498-507.
490
Syllabus
(a) In assessing laws denying welfare benefits to newly arrived
residents, this Court held in
Shapiro that a State cannot
enact durational residency requirements in order to inhibit the
migration of needy persons into the State, and that a
classification that has the effect of imposing a penalty on the
right to travel violates the Equal Protection Clause absent a
compelling governmental interest. Pp. 498-500.
(b) The right to travel embraces three different components: the
right to enter and leave another State; the right to be treated as
a welcome visitor while temporarily present in another State; and,
for those travelers who elect to become permanent residents, the
right to be treated like other citizens of that State. Pp.
500-502.
(c) The right of newly arrived citizens to the same privileges
and immunities enjoyed by other citizens of their new State-the
third aspect of the right to travel-is at issue here. That right is
protected by the new arrival's status as both a state citizen and a
United States citizen, and it is plainly identified in the
Fourteenth Amendment's Privileges or Immunities Clause, see
Slaughter-House Cases, 16 Wall. 36, 80. That newly arrived
citizens have both state and federal capacities adds special force
to their claim that they have the same rights as others who share
their citizenship. Pp. 502-504.
(d) Since the right to travel embraces a citizen's right to be
treated equally in her new State of residence, a discriminatory
classification is itself a penalty. California's classifications
are defined entirely by the period of residency and the location of
the disfavored class members' prior residences. Within the category
of new residents, those who lived in another country or in a State
that had higher benefits than California are treated like lifetime
residents; and within the broad subcategory of new arrivals who are
treated less favorably, there are 45 smaller classes whose benefit
levels are determined by the law of their former States.
California's legitimate interest in saving money does not justify
this discriminatory scheme. The Fourteenth Amendment's Citizenship
Clause expressly equates citizenship with residence,
Zobel,
457 U. S., at 69, and does not tolerate a hierarchy of subclasses
of similarly situated citizens based on the location of their prior
residences. Pp.504-507.
2. PRWORA's approval of durational residency requirements does
not resuscitate § 11450.03. This Court has consistently held that
Congress may not authorize the States to violate the Fourteenth
Amendment. Moreover, the protection afforded to a citizen by that
Amendment's Citizenship Clause limits the powers of the National
Government as well as the States. Congress' Article I powers to
legislate are limited not only by the scope of the Framers'
affirmative delegation, but also by the principle that the powers
may not be exercised in a way that violates
491
other specific provisions of the Constitution. See
Williams v.
Rhodes, 393 U. S. 23,29.
Pp.507-511.
134 F.3d
1400, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ.,
joined. REHNQUIST, C. J., filed a dissenting opinion, in which
THOMAS, J., joined,
post, p.511. THOMAS, J., filed a
dissenting opinion, in which REHNQUIST, C. J., joined,
post,
p. 521.
Theodore Garel is, Deputy Attorney General of California,
argued the cause for petitioners. With him on the briefs were
Daniel E. Lungren, Attorney General,
Charlton G.
Holland III, Senior Assistant Attorney General,
Frank S.
Furtek, Supervising Deputy Attorney General,
and
Janie
Solicitor General Waxman argued the cause for the United States
as amicus curiae in support of petitioners in part and respondents
in part. With him on the brief were Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, Edward C. DuMont, Mark
B. Stern, Kathleen Moriarty Mueller, and Peter J. Smith.
Mark D. Rosenbaum argued the cause for respondents.
With him on the brief were David S. Schwartz, Daniel P. Tokaji,
Evan H. Caminker, Laurence H. Tribe, Martha F. Davis, Karl Manheim,
Steven R. Shapiro, Alan L. Schlosser, Richard Rothschild, Clare
Pastore, and Jordan C. Budd. *
*Briefs of
amici curiae urging reversal were filed for
the Commonwealth of Pennsylvania et al. by
D. Michael
Fisher, Attorney General,
John G.
Knorr III,
Chief Deputy Attorney General,
Betty D. Montgomery, Attorney
General of Ohio, and
Jeffrey S.
Sutton, State
Solicitor, and by the Attorneys General for their respective States
as follows:
Bill Pryor of Alabama,
Robert A.
Butterworth of Florida,
Thurbert E. Baker of Georgia,
Margery S.
Bronster of Hawaii, J.
Joseph Curran,
Jr., of Maryland,
Hubert H. Humphrey III of Minnesota,
Joseph P. Mazurek of Montana,
Frankie Sue Del Papa of
Nevada,
Philip T. McLaughlin of New Hampshire,
Dennis
C.
Vacco of New York,
Michael F.
Easley of
North Carolina,
Heidi Heitkamp of North Dakota,
Jeffrey
B. Pine of Rhode Island, and
Christine O.
Gregoire of Washington; for the Institute for Justice by
Douglas W
492
JUSTICE STEVENS delivered the opinion of the Court.
In 1992, California enacted a statute limiting the maximum
welfare benefits available to newly arrived residents. The scheme
limits the amount payable to a family that has resided in the State
for less than 12 months to the amount payable by the State of the
family's prior residence. The questions presented by this case are
whether the 1992 statute was constitutional when it was enacted
and, if not, whether an amendment to the Social Security Act
enacted by Congress in 1996 affects that determination.
I
California is not only one of the largest, most populated, and
most beautiful States in the Nation; it is also one of the most
generous. Like all other States, California has participated in
several welfare programs authorized by the Social Security Act and
partially funded by the Federal Government. Its programs, however,
provide a higher level of benefits and serve more needy citizens
than those of most other States. In one year the most expensive of
those programs, Aid to Families with Dependent Children (AFDC),
which was replaced in 1996 with Temporary Assistance to
Kmiec, William H. Mellor, and
Clint Bolick; for
the National Governors' Association et al. by
Richard Ruda
and
James I. Crowley; for the Pacific Legal Foundation by
Sharon L. Browne and
Deborah J.
La Fetra; and
for the Washington Legal Foundation et al. by
Daniel J.
Popeo and
Richard A. Samp.
Briefs of
amici curiae urging affirmance were filed for
ACORN et al. by
Paul M. Dodyk and
Henry A. Freedman;
for the American Bar Association by
Philip S.
Anderson and
Paul M. Smith; for the Brennan Center
for Justice at New York University School of Law et al. by
Burt
Neuborne and
Deborah Goldberg; for Catholic Charities
USA et al. by
Louis R. Cohen; for the National Law Center on
Homelessness and Poverty by
Ann E. Bushmiller; for Sixty-six
Organizations Serving Domestic Violence Survivors by
Susan
Frietsche; for Social Scientists by
Lawrence S.
Lustberg; and for William Cohen et al. by
Roderick M.
Hills, Jr., and
Charles S.
Sims.
493
Needy Families (TANF), provided benefits for an average of
2,645,814 persons per month at an annual cost to the State of $2.9
billion. In California the cash benefit for a family of two-a
mother and one child-is $456 a month, but in the neighboring State
of Arizona, for example, it is only $275.
In 1992, in order to make a relatively modest reduction in its
vast welfare budget, the California Legislature enacted § 11450.03
of the state Welfare and Institutions Code. That section sought to
change the California AFDC program by limiting new residents, for
the first year they live in California, to the benefits they would
have received in the State of their prior residence.1 Because in
1992 a state program either had to conform to federal
specifications or receive a waiver from the Secretary of Health and
Human Services in order to qualify for federal reimbursement, §
11450.03 required approval by the Secretary to take effect. In
October 1992, the Secretary issued a waiver purporting to grant
such approval.
On December 21, 1992, three California residents who were
eligible for AFDC benefits filed an action in the Eastern District
of California challenging the constitutionality
1 California Welf. & lnst. Code Ann. § 11450.03 (West Supp.
1999) provides:
"(a) Notwithstanding the maximum aid payments specified in
paragraph (1) of subdivision (a) of Section 11450, families that
have resided in this state for less than 12 months shall be paid an
amount calculated in accordance with paragraph (1) of subdivision
(a) of Section 11450, not to exceed the maximum aid payment that
would have been received by that family from the state of prior
residence.
"(b) This section shall not become operative until the date of
approval by the United States Secretary of Health and Human
Services necessary to implement the provisions of this section so
as to ensure the continued compliance of the state plan for the
following:
"(1) Title IV of the federal Social Security Act (Subchapter 4
(commencing with Section 601) of Chapter 7 of Title 42 of the
United States Code). "(2) Title IX [sic] of the federal Social
Security Act (Subchapter 19 (commencing with Section 1396) of
Chapter 7 of Title 42 of the United States Code)."
494
of the durational residency requirement in § 11450.03. Each
plaintiff alleged that she had recently moved to California to live
with relatives in order to escape abusive family circumstances. One
returned to California after living in Louisiana for seven years,
the second had been living in Oklahoma for six weeks and the third
came from Colorado. Each alleged that her monthly AFDC grant for
the ensuing 12 months would be substantially lower under § 11450.03
than if the statute were not in effect. Thus, the former residents
of Louisiana and Oklahoma would receive $190 and $341 respectively
for a family of three even though the full California grant was
$641; the former resident of Colorado, who had just one child, was
limited to $280 a month as opposed to the full California grant of
$504 for a family of two.
The District Court issued a temporary restraining order and,
after a hearing, preliminarily enjoined implementation of the
statute. District Judge Levi found that the statute "produces
substantial disparities in benefit levels and makes no
accommodation for the different costs of living that exist in
different states." 2 Relying primarily on our decisions in
Shapiro v.
Thompson, 394 U. S. 618 (1969), and
Zobel v.
Williams, 457 U. S. 55 (1982), he
concluded that the statute placed "a penalty on the decision of new
residents to migrate to the State and be treated on an equal basis
with existing residents."
Green v.
Anderson, 811 F.
Supp. 516, 521 (ED Cal. 1993). In his view, if the purpose of the
measure was to deter migration by poor people into the State, it
would be unconstitutional for that reason. And even if the purpose
was only to conserve limited funds, the State had failed to explain
why the entire burden of the saving should be imposed on new
residents. The Court of Appeals sum-
2 The District Court referred to an official table of fair
market rents indicating that California's housing costs are higher
than any other State except Massachusetts. See
Green v.
Anderson, 811 F. Supp. 516, 521, n. 13 (ED Cal. 1993); see
also Declaration of Robert Greenstein, App. 91-94.
495
marily affirmed for the reasons stated by the District Judge.
Green v.
Anderson, 26 F.3d
95 (CA9 1994).
We granted the State's petition for certiorari. 513 U. S. 922
(1994). We were, however, unable to reach the merits because the
Secretary's approval of § 11450.03 had been invalidated in a
separate proceeding,3 and the State had acknowledged that the Act
would not be implemented without further action by the Secretary.
We vacated the judgment and directed that the case be dismissed.
Anderson v.
Green, 513 U. S. 557 (1995)
(per curiam}.4 Accordingly, § 11450.03 remained inoperative
until after Congress enacted the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (PRWORA), 110 Stat.
2105.
PRWORA replaced the AFDC program with TANF. The new statute
expressly authorizes any State that receives a block grant under
TANF to "apply to a family the rules (including benefit amounts) of
the [TANF] program ... of another State if the family has moved to
the State from the other State and has resided in the State for
less than 12 months." 110 Stat. 2124, 42 U. S. C. § 604(c) (1994
ed., Supp. II). With this federal statutory provision in effect,
California no longer needed specific approval from the Secretary to
implement § 11450.03. The California Department of Social Services
therefore issued an "All County Letter" announcing that the
enforcement of § 11450.03 would commence on April 1, 1997.
The All County Letter clarifies certain aspects of the statute.
Even if members of an eligible family had lived in California all
of their lives, but left the State "on January 29th, intending to
reside in another state, and returned on April 15th," their
benefits are determined by the law of their State of residence from
January 29 to April 15, assuming
3 Beno v. Shalala,
30 F.3d
1057 (CA9 1994).
4 In February 1996, the Secretary granted waivers for certain
changes in California's welfare program, but she declined to
authorize any distinction between old and new residents. App. to
Pet. for Cert. 46-52.
496
that that level was lower than California's.5 Moreover, the
lower level of benefits applies regardless of whether the family
was on welfare in the State of prior residence and regardless of
the family's motive for moving to California. The instructions also
explain that the residency requirement is inapplicable to families
that recently arrived from another country.
II
On April 1, 1997, the two respondents filed this action in the
Eastern District of California making essentially the same claims
asserted by the plaintiffs in
Anderson v.
Green,6 but
also challenging the constitutionality of PRWORA's approval of the
durational residency requirement. As in
Green, the District
Court issued a temporary restraining order and certified the case
as a class action.7 The court also advised the Attorney General of
the United States that the constitutionality of a federal statute
had been drawn into question, but she did not seek to intervene or
to file an
amicus brief. Reasoning that PRWORA permitted,
but did not require, States to impose durational residency
requirements, Judge Levi concluded that the existence of the
federal statute did not affect the legal analysis in his prior
opinion in
Green.
He did, however, make certain additional comments on the
parties' factual contentions. He noted that the State did not
challenge plaintiffs' evidence indicating that, although
5 Record 30 (Plaintiffs' Exh. 3, Attachment 1).
6 One of the respondents is a former resident of Oklahoma and
the other moved to California from the District of Columbia. In
both of those jurisdictions the benefit levels are substantially
lower than in California.
7 On the stipulation of the parties, the court certified a class
of plaintiffs defined as "'all present and future AFDC and TANF
applicants and recipients who have applied or will apply for AFDC
or TANF on or after April 1, 1997, and who will be denied full
California AFDC or TANF benefits because they have not resided in
California for twelve consecutive months immediately preceding
their application for aid.''' App. to Pet. for Cert. 20.
497
California benefit levels were the sixth highest in the Nation
in absolute terms,S when housing costs are factored in, they rank
18th; that new residents coming from 43 States would face higher
costs of living in California; and that welfare benefit levels
actually have little, if any, impact on the residential choices
made by poor people. On the other hand, he noted that the
availability of other programs such as homeless assistance and an
additional food stamp allowance of $1 in stamps for every $3 in
reduced welfare benefits partially offset the disparity between the
benefits for new and old residents. Notwithstanding those
ameliorating facts, the State did not disagree with plaintiffs'
contention that § 11450.03 would create significant disparities
between newcomers and welfare recipients who have resided in the
State for over one year.
The State relied squarely on the undisputed fact that the
statute would save some $10.9 million in annual welfare costs-an
amount that is surely significant even though only a relatively
small part of its annual expenditures of approximately $2.9 billion
for the entire program. It contended that this cost saving was an
appropriate exercise of budgetary authority as long as the
residency requirement did not penalize the right to travel. The
State reasoned that the payment of the same benefits that would
have been received in the State of prior residency eliminated any
potentially punitive aspects of the measure. Judge Levi concluded,
however, that the relevant comparison was not between new residents
of California and the residents of their former States, but rather
between the new residents and longer term residents of California.
He therefore again enjoined the implementation of the statute.
Without finally deciding the merits, the Court of Appeals
affirmed his issuance of a preliminary injunction.
Roe v.
Anderson, 134 F.3d
1400 (CA9 1998). It agreed with the
8 Forty-four States and the District of Columbia have lower
benefit levels than California.
Id., at 22, n. 10.
498
District Court's view that the passage of PRWORA did not affect
the constitutional analysis, that respondents had established a
probability of success on the merits, and that class members might
suffer irreparable harm if § 11450.03 became operative. Although
the decision of the Court of Appeals is consistent with the views
of other federal courts that have addressed the issue,9 we granted
certiorari because of the importance of the case.
Anderson
v.
Roe, 524 U. S. 982 (1998).10 We now affirm.
III
The word "travel" is not found in the text of the Constitution.
Yet the "constitutional right to travel from one State to another"
is firmly embedded in our jurisprudence.
United States v.
Guest, 383 U.
S. 745, 757 (1966). Indeed, as Justice Stewart reminded us in
Shapiro v.
Thompson, 394 U. S. 618 (1969), the right
is so important that it is "assertable against private interference
as well as governmental action ... a virtually unconditional
personal right, guaranteed by the Constitution to us all."
Id., at 643 (concurring opinion).
9 See
Maldonado v.
Houston, 157
F.3d 179 (CA3 1998) (finding twotier durational residency
requirement an unconstitutional infringement on the right to
travel);
Anderson v.
Green, 26
F.3d 95 (CA9 1994), vacated as unripe,
513 U. S. 557 (1995)
(per curiam); Hicks v.
Peters, 10 F. Supp. 2d 1003
(ND Ill. 1998) (granting injunction against enforcement of
durational residency requirement);
Westenfelder v.
Ferguson, 998 F. Supp. 146 (Rr 1998) (holding durational
residency requirement a penalty on right to travel incapable of
surviving rational-basis review). Two state courts have reached the
same conclusion. See
Mitchell v.
Steffen, 504 N. W.
2d 198 (Minn. 1993), cert. denied, 510 U. S. 1081 (1994) (striking
down a similar provision in Minnesota law);
Sanchez v.
Department of Human Services, 314 N. J. Super. 11, 713 A. 2d
1056 (1998) (striking down two-tier welfare system); cf.
Jones v.
Milwaukee County, 168 Wis. 2d 892, 485 N. W.
2d 21 (1992) (holding that a 60-day waiting period for applicant
for general relief is not a penalty and therefore not
unconstitutional).
10 After this case was argued, petitioner Rita L. Saenz replaced
Eloise Anderson as Director, California Department of Social
Services.
499
In
Shapiro, we reviewed the constitutionality of three
statutory provisions that denied welfare assistance to residents of
Connecticut, the District of Columbia, and Pennsylvania, who had
resided within those respective jurisdictions less than one year
immediately preceding their applications for assistance. Without
pausing to identify the specific source of the right, we began by
noting that the Court had long "recognized that the nature of our
Federal Union and our constitutional concepts of personal liberty
unite to require that all citizens be free to travel throughout the
length and breadth of our land uninhibited by statutes, rules, or
regulations which unreasonably burden or restrict this movement."
Id., at 629. We squarely held that it was "constitutionally
impermissible" for a State to enact durational residency
requirements for the purpose of inhibiting the migration by needy
persons into the StateY We further held that a classification that
had the effect of imposing a penalty on the exercise of the right
to travel violated the Equal Protection Clause "unless shown to be
necessary to promote a
compelling governmental interest,"
id., at 634, and that no such showing had been made.
In this case California argues that § 11450.03 was not enacted
for the impermissible purpose of inhibiting migration by needy
persons and that, unlike the legislation reviewed in
Shapiro, it does not penalize the right to travel because
new arrivals are not ineligible for benefits during their first
year of residence. California submits that, in-
l1"We do not doubt that the one-year waiting-period device is
well suited to discourage the influx of poor families in need of
assistance .... But the purpose of inhibiting migration by needy
persons into the State is constitutionally impermissible." 394 U.
S., at 629.
"Thus, the purpose of deterring the in-migration of indigents
cannot serve as justification for the classification created by the
one-year waiting period .... If a law has 'no other purpose ...
than to chill the assertion of constitutional rights by penalizing
those who choose to exercise them, then it [is] patently
unconstitutional.'
United States v.
Jackson, 390 U. S. 570, 581
(1968)."
Id., at 631.
500
stead of being subjected to the strictest scrutiny, the statute
should be upheld if it is supported by a rational basis and that
the State's legitimate interest in saving over $10 million a year
satisfies that test. Although the United States did not elect to
participate in the proceedings in the District Court or the Court
of Appeals, it has participated as
amicus curiae in this
Court. It has advanced the novel argument that the enactment of
PRWORA allows the States to adopt a "specialized choice-of-Iaw-type
provision" that "should be subject to an intermediate level of
constitutional review," merely requiring that durational residency
requirements be "substantially related to an important governmental
objective." 12 The debate about the appropriate standard of review,
together with the potential relevance of the federal statute,
persuades us that it will be useful to focus on the source of the
constitutional right on which respondents rely.
IV
The "right to travel" discussed in our cases embraces at least
three different components. It protects the right of a citizen of
one State to enter and to leave another State, the right to be
treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State, and, for those travelers
who elect to become permanent residents, the right to be treated
like other citizens of that State.
It was the right to go from one place to another, including the
right to cross state borders while en route, that was vindicated in
Edwards v.
California, 314 U. S. 160 (1941),
which invalidated a state law that impeded the free interstate
passage of the indigent. We reaffirmed that right in
United
States v.
Guest, 383 U. S. 745 (1966),
which afforded protection to the "'right to travel freely to and
from the State of Georgia and to use highway facilities and
other
12 Brief for United States as
Amicus Curiae 8, 10.
501
instrumentalities of interstate commerce within the State of
Georgia.'"
Id., at 757. Given that § 11450.03 imposed no
obstacle to respondents' entry into California, we think the State
is correct when it argues that the statute does not directly impair
the exercise of the right to free interstate movement. For the
purposes of this case, therefore, we need not identify the source
of that particular right in the text of the Constitution. The right
of "free ingress and regress to and from" neighboring States, which
was expressly mentioned in the text of the Articles of
Confederation,13 may simply have been "conceived from the beginning
to be a necessary concomitant of the stronger Union the
Constitution created."
Id., at 758.
The second component of the right to travel is, however,
expressly protected by the text of the Constitution. The first
sentence of Article IV; § 2, provides:
"The Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States."
Thus, by virtue of a person's state citizenship, a citizen of
one State who travels in other States, intending to return home at
the end of his journey, is entitled to enjoy the "Privileges and
Immunities of Citizens in the several States" that he visits.14
This provision removes "from the citizens of each State the
disabilities of alienage in the other States."
Paul v.
Virginia, 8 Wall. 168, 180 (1869) ("[W]ithout some
13 "The 4th article, respecting the [sic] extending the rights
of the Citizens of each State, throughout the United States ... is
formed exactly upon the principles of the 4th article of the
present Confederation." 3 Records of the Federal Convention of
1787, p. 112 (M. Farrand ed. 1966). Article IV of the Articles of
Confederation provided that "the people of each State shall have
free ingress and regress to and from any other State."
14 Corfield v.
Coryell, 6 F. Cas. 546 (No. 3,230)
(CCED Pa. 1823) (Washington, J., on circuit) ("fundamental" rights
protected by the Privileges and Immunities Clause include "the
right of a citizen of one state to pass through, or to reside in
any other state").
502
provision ... removing from the citizens of each State the
disabilities of alienage in the other States, and giving them
equality of privilege with citizens of those States, the Republic
would have constituted little more than a league of States; it
would not have constituted the Union which now exists"). It
provides important protections for nonresidents who enter a State
whether to obtain employment,
Hicklin v.
Orbeck,
437 U. S. 518
(1978), to procure medical services,
Doe v.
Bolton,
410 U. S. 179,
200 (1973), or even to engage in commercial shrimp fishing,
Toomer v.
Witsell, 334 U. S. 385 (1948).
Those protections are not "absolute," but the Clause "does bar
discrimination against citizens of other States where there is no
substantial reason for the discrimination beyond the mere fact that
they are citizens of other States."
Id., at 396. There may
be a substantial reason for requiring the nonresident to pay more
than the resident for a hunting license, see
Baldwin v.
Fish and Game Comm'n of Mont., 436 U. S. 371, 390-391
(1978), or to enroll in the state university, see
Vlandis v.
Kline, 412 U.
S. 441, 445 (1973), but our cases have not identified any
acceptable reason for qualifying the protection afforded by the
Clause for "the 'citizen of State A who ventures into State B' to
settle there and establish a home."
Zobel, 457 U. S., at 74
(O'CONNOR, J., concurring in judgment). Permissible justifications
for discrimination between residents and nonresidents are simply
inapplicable to a nonresident's exercise of the right to move into
another State and become a resident of that State.
What is at issue in this case, then, is this third aspect of the
right to travel-the right of the newly arrived citizen to the same
privileges and immunities enjoyed by other citizens of the same
State. That right is protected not only by the new arrival's status
as a state citizen, but also by her status as a citizen of the
United States.15 That additional source
15 The Framers of the Fourteenth Amendment modeled this Clause
upon the "Privileges and Immunities" Clause found in Article IV.
Congo Globe, 39th Cong., 1st Sess., 1033-1034 (1866) (statement of
Rep. Bingham). In
503
of protection is plainly identified in the opening words of the
Fourteenth Amendment:
"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; .... " 16
Despite fundamentally differing views concerning the coverage of
the Privileges or Immunities Clause of the Fourteenth Amendment,
most notably expressed in the majority and dissenting opinions in
the
Slaughter-House Cases, 16 Wall. 36 (1873), it has always
been common ground that this Clause protects the third component of
the right to travel. Writing for the majority in the
Slaughter-House Cases, Justice Miller explained that one of
the privileges conferred by this Clause "is that a citizen of the
United States can, of his own volition, become a citizen of any
State of the Union by a bona fide residence therein, with the same
rights as other citizens of that State."
Id., at 80. Justice
Bradley, in dissent, used even stronger language to make the same
point:
"The states have not now, if they ever had, any power to
restrict their citizenship to any classes or persons. A citizen of
the United States has a perfect constitutional
Dred Scott v.
Sandford, 19 How. 393 (1857), this
Court had limited the protection of Article IV to rights under
state law and concluded that free blacks could not claim
citizenship. The Fourteenth Amendment overruled this decision. The
Amendment's Privileges or Immunities Clause and Citizenship Clause
guaranteed the rights of newly freed black citizens by ensuring
that they could claim the state citizenship of any State in which
they resided and by precluding that State from abridging their
rights of national citizenship.
16 U. S. Const., Arndt. 14, § 1. The remainder of the section
provides: "nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws."
504
right to go to and reside in any State he chooses, and to claim
citizenship therein, and an equality of rights with every other
citizen; and the whole power of the nation is pledged to sustain
him in that right. He is not bound to cringe to any superior, or to
pray for any act of grace, as a means of enjoying all the rights
and privileges enjoyed by other citizens." Id., at
112-113.
That newly arrived citizens "have two political capacities, one
state and one federal," adds special force to their claim that they
have the same rights as others who share their citizenship. 17
Neither mere rationality nor some intermediate standard of review
should be used to judge the constitutionality of a state rule that
discriminates against some of its citizens because they have been
domiciled in the State for less than a year. The appropriate
standard may be more categorical than that articulated in
Shapiro, see
supra, at 499, but it is surely no less
strict.
v
Because this case involves discrimination against citizens who
have completed their interstate travel, the State's argument that
its welfare scheme affects the right to travel only "incidentally"
is beside the point. Were we concerned solely with actual
deterrence to migration, we might be persuaded that a partial
withholding of benefits constitutes a lesser incursion on the right
to travel than an outright denial of all benefits. See
Dunn
v.
Blumstein, 405 U. S. 330, 339
(1972).
17"Federalism was our Nation's own discovery. The Framers split
the atom of sovereignty. It was the genius of their idea that our
citizens would have two political capacities, one state and one
federal, each protected from incursion by the other. The resulting
Constitution created a legal system unprecedented in form and
design, establishing two orders of government, each with its own
direct relationship, its own privity, its own set of mutual rights
and obligations to the people who sustain it and are governed by
it."
U. S.
Term Limits, Inc. v.
Thornton,
514 U. S. 779,
838 (1995) (KENNEDY, J., concurring).
505
But since the right to travel embraces the citizen's right to be
treated equally in her new State of residence, the discriminatory
classification is itself a penalty.
It is undisputed that respondents and the members of the class
that they represent are citizens of California and that their need
for welfare benefits is unrelated to the length of time that they
have resided in California. We thus have no occasion to consider
what weight might be given to a citizen's length of residence if
the bona fides of her claim to state citizenship were questioned.
Moreover, because whatever benefits they receive will be consumed
while they remain in California, there is no danger that
recognition of their claim will encourage citizens of other States
to establish residency for just long enough to acquire some readily
portable benefit, such as a divorce or a college education, that
will be enjoyed after they return to their original domicile. See,
e. g.,
Sosna v.
Iowa, 419 U. S. 393 (1975);
Vlandis v.
Kline, 412 U. S. 441 (1973).
The classifications challenged in this case-and there are
many-are defined entirely by (a) the period of residency in
California and (b) the location of the prior residences of the
disfavored class members. The favored class of beneficiaries
includes all eligible California citizens who have resided there
for at least one year, plus those new arrivals who last resided in
another country or in a State that provides benefits at least as
generous as California's. Thus, within the broad category of
citizens who resided in California for less than a year, there are
many who are treated like lifetime residents. And within the broad
subcategory of new arrivals who are treated less favorably, there
are many smaller classes whose benefit levels are determined by the
law of the States from whence they came. To justify § 11450.03,
California must therefore explain not only why it is sound fiscal
policy to discriminate against those who have been citizens for
less than a year, but also why it is permissible to apply such a
variety of rules within that class.
506
These classifications may not be justified by a purpose to deter
welfare applicants from migrating to California for three reasons.
First, although it is reasonable to assume that some persons may be
motivated to move for the purpose of obtaining higher benefits, the
empirical evidence reviewed by the District Judge, which takes into
account the high cost of living in California, indicates that the
number of such persons is quite small-surely not large enough to
justify a burden on those who had no such motive.18 Second,
California has represented to the Court that the legislation was
not enacted for any such reason.19 Third, even if it were, as we
squarely held in
Shapiro v.
Thompson, 394 U. S. 618
(1969), such a purpose would be unequivocally impermissible.
Disavowing any desire to fence out the indigent, California has
instead advanced an entirely fiscal justification for its
multitiered scheme. The enforcement of § 11450.03 will save the
State approximately $10.9 million a year. The question is not
whether such saving is a legitimate purpose but whether the State
may accomplish that end by the discriminatory means it has chosen.
An evenhanded, acrossthe-board reduction of about 72 cents per
month for every beneficiary would produce the same result. But our
negative answer to the question does not rest on the weakness of
the State's purported fiscal justification. It rests on the fact
that the Citizenship Clause of the Fourteenth Amendment expressly
equates citizenship with residence: "That Clause does not provide
for, and does not allow for, degrees of citizenship based on length
of residence."
Zobel, 457 U. S., at 69. It is equally clear
that the Clause does not tolerate a hierarchy of 45 subclasses of
similarly situated
18 App. 21-26.
19 The District Court and the Court of Appeals concluded,
however, that the "apparent purpose of § 11450.03 was to deter
migration of poor people to California." Roe v. Anderson,
134 F.3d
1400, 1404 (CA9 1998).
507
citizens based on the location of their prior residence.2o Thus
§ 11450.03 is doubly vulnerable: Neither the duration of
respondents' California residence, nor the identity of their prior
States of residence, has any relevance to their need for benefits.
Nor do those factors bear any relationship to the State's interest
in making an equitable allocation of the funds to be distributed
among its needy citizens. As in
Shapiro, we reject any
contributory rationale for the denial of benefits to new
residents:
"But we need not rest on the particular facts of these cases.
Appellants' reasoning would logically permit the State to bar new
residents from schools, parks, and libraries or deprive them of
police and fire protection. Indeed it would permit the State to
apportion all benefits and services according to the past tax
contributions of its citizens." 394 U. S., at 632-633.
See also
Zobel, 457 U. S., at 64. In short, the State's
legitimate interest in saving money provides no justification for
its decision to discriminate among equally eligible citizens.
VI
The question that remains is whether congressional approval of
durational residency requirements in the 1996 amendment to the
Social Security Act somehow resuscitates the constitutionality of §
11450.03. That question is readily answered, for we have
consistently held that Congress may not authorize the States to
violate the Fourteenth AmendmentP Moreover, the protection afforded
to the citizen by
20 See Cohen, Discrimination Against New State Citizens: An
Update, 11 Const. Comm. 73, 79 (1994) ("[J]ust as it would violate
the Constitution to deny these new arrivals state citizenship, it
would violate the Constitution to concede their citizenship in name
only while treating them as if they were still citizens of other
states").
21" 'Congress is without power to enlist state cooperation in a
joint federal-state program by legislation which authorizes the
States to violate the Equal Protection Clause.'
Shapiro v.
Thompson, 394
U. S. 618, 641
(1969)." Townsend v.
Swank,
404 U. S. 282,
291 (1971).
508
the Citizenship Clause of that Amendment is a limitation on the
powers of the National Government as well as the States.
Article I of the Constitution grants Congress broad power to
legislate in certain areas. Those legislative powers are, however,
limited not only by the scope of the Framers' affirmative
delegation, but also by the principle "that they may not be
exercised in a way that violates other specific provisions of the
Constitution. For example, Congress is granted broad power to 'lay
and collect Taxes,' but the taxing power, broad as it is, may not
be invoked in such a way as to violate the privilege against
self-incrimination."
Williams v.
Rhodes, 393 U. S. 23, 29 (1968)
(footnote omitted). Congress has no affirmative power to authorize
the States to violate the Fourteenth Amendment and is implicitly
prohibited from passing legislation that purports to validate any
such violation.
"Section 5 of the Fourteenth Amendment gives Congress broad
power indeed to enforce the command of the amendment and 'to secure
to all persons the enjoyment of perfect equality of civil rights
and the equal protection of the laws against State denial or
invasion .... ' Ex parte Virginia, 100 U. S. 339, 346
(1880). Congress' power under § 5, however, 'is limited to adopting
measures to enforce the guarantees of the Amendment; § 5 grants
Congress no power to restrict, abrogate, or dilute these
guarantees.' Katzenbach v. Morgan, 384 U. S. 641, 651, n. 10
(1966). Although we give deference to congressional decisions and
classifications, neither Congress nor a State can validate a law
that denies the rights guaranteed by the Fourteenth Amendment. See,
e. g., Califano v. Goldfarb, 430 U. S. 199,210 (1977);
Williams v. Rhodes, 393 U. S. 23, 29 (1968)."
Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 732-733
(1982).
509
The Solicitor General does not unequivocally defend the
constitutionality of § 11450.03. But he has argued that two
features of PRWORA may provide a sufficient justification for state
durational requirements to warrant further inquiry before finally
passing on the section's validity, or perhaps that it is only
invalid insofar as it applies to new arrivals who were not on
welfare before they arrived in California.22
He first points out that because the TANF program gives the
States broader discretion than did AFDC, there will be significant
differences among the States which may provide new incentives for
welfare recipients to change their residences. He does not,
however, persuade us that the disparities under the new program
will necessarily be any greater than the differences under AFDC,
which included such examples as the disparity between California's
monthly benefit of $673 for a family of four with Mississippi's
benefit of $144 for a comparable family. Moreover, we are not
convinced that a policy of eliminating incentives to move to
California provides a more permissible justification for
classifying California citizens than a policy of imposing special
burdens on new arrivals to deter them from moving into the State.
Nor is the discriminatory impact of § 11450.03 abated by repeatedly
characterizing it as "a sort of specialized choice-of-Iaw rule." 23
California law alone discriminates among its own citizens on the
basis of their prior residence.
The Solicitor General also suggests that we should recognize the
congressional concern addressed in the legislative history of
PRWORA that the "States might engage in a 'race to the bottom' in
setting the benefit levels in their TANF
22 Brief for United States as
Amicus Curiae 29, n.
10.
23Id., at 9; see also
id., at 3, 8, 14, 15, 20,
22, 23, 24, 27, 28, 28-29.
510
programs." 24 Again, it is difficult to see why that concern
should be any greater under TANF than under AFDC. The evidence
reviewed by the District Court indicates that the savings resulting
from the discriminatory policy, if spread equitably throughout the
entire program, would have only a miniscule impact on benefit
levels. Indeed, as one of the legislators apparently interpreted
this concern, it would logically prompt the States to reduce
benefit levels sufficiently "to encourage emigration of benefit
recipients." 25 But speculation about such an unlikely eventuality
provides no basis for upholding § 11450.03.
Finally, the Solicitor General suggests that the State's
discrimination might be acceptable if California had limited the
disfavored subcategories of new citizens to those who had received
aid in their prior State of residence at any time within the year
before their arrival in California. The suggestion is ironic for at
least three reasons: It would impose the most severe burdens on the
neediest members of the disfavored classes; it would significantly
reduce the savings that the State would obtain, thus making the
State's claimed justification even less tenable; and, it would
confine the effect of the statute to what the Solicitor General
correctly characterizes as "the invidious purpose of discouraging
poor people generally from settling in the State." 26
***
Citizens of the United States, whether rich or poor, have the
right to choose to be citizens "of the State wherein they
24Id., at 8. See H. R. Rep. No. 104-651, p. 1337 (1996)
("States that want to pay higher benefits should not be deterred
from doing so by the fear that they will attract large numbers of
recipients from bordering States").
25 Brief for United States as
Amicus Curiae 16. See
States' Perspective on Welfare Reform: Hearing before the Senate
Committee on Finance, 104th Cong., 1st Sess., 9 (1995).
26 Brief for United States as
Amicus Curiae 30, n.
11.
511
reside." U. S. Const., Arndt. 14, § 1. The States, however, do
not have any right to select their citizens.27 The Fourteenth
Amendment, like the Constitution itself, was, as Justice Cardozo
put it, "framed upon the theory that the peoples of the several
states must sink or swim together, and that in the long run
prosperity and salvation are in union and not division."
Baldwin v. G.
A. F. Seelig, Inc., 294 U. S. 511, 523
(1935).
The judgment of the Court of Appeals is affirmed.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE THOMAS joins,
dissenting.
The Court today breathes new life into the previously dormant
Privileges or Immunities Clause of the Fourteenth Amendment-a
Clause relied upon by this Court in only one other decision,
Colgate v.
Harvey, 296 U. S. 404 (1935),
overruled five years later by
Madden v.
Kentucky,
309 U. S. 83
(1940). It uses this Clause to strike down what I believe is a
reasonable measure falling under the head of a "goodfaith residency
requirement." Because I do not think any provision of the
Constitution-and surely not a provision relied upon for only the
second time since its enactment 130 years ago-requires this result,
I dissent.
I
Much of the Court's opinion is unremarkable and sound.
The right to travel clearly embraces the right to go from one
place to another, and prohibits States from impeding the
27 As Justice Jackson observed: "[I]t is a privilege of
citizenship of the United States, protected from state abridgment,
to enter any State of the Union, either for temporary sojourn or
for the establishment of permanent residence therein and for
gaining resultant citizenship thereof. If national citizenship
means less than this, it means nothing."
Edwards v.
California, 314 U. S. 160, 183 (1941)
(concurring opinion).
512
free interstate passage of citizens. The state law in
Ed
wards v.
California, 314 U. S. 160 (1941),
which prohibited the transport of any indigent person into
California, was a classic barrier to travel or migration and the
Court rightly struck it down. Indeed, for most of this country's
history, what the Court today calls the first "component" of the
right to travel,
ante, at 500, was the entirety of this
right. As Chief Justice Taney stated in his dissent in the
Passenger Cases, 7 How. 283 (1849):
"We are all citizens of the United States; and, as members of
the same community, must have the right to pass and repass through
every part of it without interruption, as freely as in our own
States. And a tax imposed by a State for entering its territories
or harbours is inconsistent with the rights which belong to the
citizens of other States as members of the Union, and with the
objects which that Union was intended to attain. Such a power in
the States could produce nothing but discord and mutual irritation,
and they very clearly do not possess it." Id., at 492.
See also
Crandall v.
Nevada, 6 Wall. 35, 44
(1868);
Williams v.
Fears, 179 U. S. 270, 274
(1900);
Memorial Hospital v.
Maricopa County,
415 U. S. 250,
280-283 (1974) (REHNQUIST, J., dissenting) (collecting and
discussing cases). The Court wisely holds that because Cal. Welf.
& Inst. Code Ann. § 11450.03 (West Supp. 1999) imposes no
obstacle to respondents' entry into California, the statute does
not infringe upon the right to travel. See
ante, at 501.
Thus, the traditional conception of the right to travel is simply
not an issue in this case.
I also have no difficulty with aligning the right to travel with
the protections afforded by the Privileges and Immunities Clause of
Article IV; § 2, to nonresidents who enter other States "intending
to return home at the end of [their] journey." See
ante, at
501. Nonresident visitors of other
513
States should not be subject to discrimination solely because
they live out of State. See
Paul v.
Virginia, 8 Wall.
168 (1869);
Hicklin v.
Orbeck, 437 U. S. 518 (1978).
Like the traditional right-to-travel guarantees discussed above,
however, this Clause has no application here, because respondents
expressed a desire to stay in California and become citizens of
that State. Respondents therefore plainly fall outside the
protections of Article IV, § 2.
Finally, I agree with the proposition that a "citizen of the
United States can, of his own volition, become a citizen of any
State of the Union by a
bonafide residence therein, with the
same rights as other citizens of that State."
SlaughterHouse
Cases, 16 Wall. 36, 80 (1873).
But I cannot see how the right to become a citizen of another
State is a necessary "component" of the right to travel, or why the
Court tries to marry these separate and distinct rights. A person
is no longer "traveling" in any sense of the word when he finishes
his journey to a State which he plans to make his home. Indeed,
under the Court's logic, the protections of the Privileges or
Immunities Clause recognized in this case come into play only when
an individual
stops traveling with the intent to remain and
become a citizen of a new State. The right to travel and the right
to become a citizen are distinct, their relationship is not
reciprocal, and one is not a "component" of the other. Indeed, the
same dicta from the
Slaughter-House Cases quoted by the
Court actually treat the right to become a citizen and the right to
travel as separate and distinct rights under the Privileges or
Immunities Clause of the Fourteenth Amendment. See id., at 79-80.1
At most, restrictions on an indi-
1 The Court's decision in the
Slaughter-House Cases only
confirms my view that state infringement on the right to travel is
limited to the kind of barrier established in
Edwards v.
California, 314 U. S. 160 (1941), and
its discussion is worth quoting in full:
"But lest it should be said that no such privileges and
immunities are to be found if those we have been considering are
excluded, we venture
514
vidual's right to become a citizen indirectly affect his
calculus in deciding whether to exercise his right to travel in the
first place, but such an attenuated and uncertain relationship is
no ground for folding one right into the other.
No doubt the Court has, in the past 30 years, essentially
conflated the right to travel with the right to equal state
citizenship in striking down durational residence requirements
similar to the one challenged here. See,
e. g., Shapiro v.
Thompson, 394
U. S. 618 (1969) (striking down i-year residence before
receiving any welfare benefit);
Dunn v.
Blumstein,
405 U. S. 330
(1972) (striking down i-year residence before receiving the right
to vote in state elections);
Maricopa County, 415 U. S., at
280-283 (striking down i-year county residence before receiving
entitlement to nonemergency hospitalization or emergency care).
These cases marked a sharp departure from the Court's prior
right-totravel cases because in none of them was travel itself
prohibited. See id., at 254-255 ("Whatever its ultimate scope ...
the right to travel was involved in only a limited sense in
Shapiro"); Shapiro, supra, at 671-672 (Harlan, J.,
dissenting).
Instead, the Court in these cases held that restricting the
provision of welfare benefits, votes, or certain medical bene-
to suggest some which own their existence to the Federal
government, its National character, its Constitution, or its
laws.
"One of these is well described in the case of
Crandall
v.
Nevada[, 6 Wall. 35 (1868)]. It is said to be the right
of the citizen of this great country, protected by implied
guarantees of its Constitution, 'to come to the seat of government
to assert any claim he may have upon that government, to transact
any business he may have with it, to seek its protection, to share
its offices, to engage in administering its functions. He has the
right of free access to its seaports, through which all operations
of foreign commerce are conducted, to the subtreasuries, land
offices, and courts of justice in the several States.' And quoting
from the language of Chief Justice Taney in another case, it is
said 'that
for all the great purposes for which the Federal
government was established, we are one people, with one common
country,
we are all citizens of the United States;' and it
is, as such citizens, that their rights are supported in this court
in
Crandall v.
Nevada." 16 Wall., at 79 (footnote
omitted).
515
fits to new citizens for a limited time impermissibly
"penalized" them under the Equal Protection Clause of the
Fourteenth Amendment for having exercised their right to travel.
See
Maricopa County, supra, at 257. The Court thus settled
for deciding what restrictions amounted to "deprivations of very
important benefits and rights" that operated to indirectly
"penalize" the right to travel. See
Attorney General of N.
Y. v. So
to-Lopez, 476 U. S. 898, 907 (1986)
(plurality opinion). In other cases, the Court recognized that laws
dividing new and old residents had little to do with the right to
travel and merely triggered an inquiry into whether the resulting
classification rationally furthered a legitimate government
purpose. See
Zobel v.
Williams, 457 U. S. 55, 60, n. 6
(1982);
Hooper v.
Bernalillo County Assessor,
472 U. S. 612,
618 (1985).2 While
Zobel and
Hooper reached the wrong
result in my view, they at least put the Court on the proper track
in identifying exactly what interests it was protecting; namely,
the right of individuals not to be subject to unjustifiable
classifications as opposed to infringements on the right to
travel.
The Court today tries to clear much of the underbrush created by
these prior right-to-travel cases, abandoning its effort to define
what residence requirements deprive individuals of "important
rights and benefits" or "penalize" the right to travel. See
ante, at 504-507. Under its new analytical framework, a
State, outside certain ill-defined circumstances, cannot classify
its citizens by the length of their residence in the State without
offending the Privileges or Immunities Clause of the Fourteenth
Amendment. The Court thus departs from
Shapiro and its
progeny, and, while paying lipservice to the right to travel, the
Court does
2 As Chief Justice Burger aptly stated in
Zobel: "In
reality, right to travel analysis refers to little more than a
particular application of equal protection analysis. Right to
travel cases have examined, in equal protection terms, state
distinctions between newcomers and longer term residents." 457 U.
S., at 60, n. 6.
516
little to explain how the right to travel is involved at all.
Instead, as the Court's analysis clearly demonstrates, see
ante, at 504-507, this case is only about respondents' right
to immediately enjoy all the privileges of being a California
citizen in relation to that State's ability to test the goodfaith
assertion of this right. The Court has thus come full circle by
effectively disavowing the analysis of
Shapiro, segregating
the right to travel and the rights secured by Article IV from the
right to become a citizen under the Privileges or Immunities
Clause, and then testing the residence requirement here against
this latter right. For all its misplaced efforts to fold the right
to become a citizen into the right to travel, the Court has
essentially returned to its original understanding of the right to
travel.
II
In unearthing from its tomb the right to become a state citizen
and to be treated equally in the new State of residence, however,
the Court ignores a State's need to assure that only persons who
establish a bona fide residence receive the benefits provided to
current residents of the State. The
Slaughter-House dicta at
the core of the Court's analysis specifically condition a United
States citizen's right to "become a citizen of any state of the
Union" and to enjoy the "same rights as other citizens of that
State" on the establishment of a
"bona fide residence
therein." 16 WalL, at 80 (emphasis added). Even when redefining
the right to travel in
Shapiro and its progeny, the Court
has "always carefully distinguished between bona fide residence
requirements, which seek to differentiate between residents and
nonresidents, and residence requirements, such as durational, fixed
date, and fixed point residence requirements, which treat
established residents differently based on the time they migrated
into the State." So
to-Lopez, supra, at 903, n.3 (citing
cases).
517
Thus, the Court has consistently recognized that while new
citizens must have the same opportunity to enjoy the privileges of
being a citizen of a State, the States retain the ability to use
bona fide residence requirements to ferret out those who intend to
take the privileges and run. As this Court explained in
Martinez v.
Bynum, 461 U. S. 321, 328-329
(1983): "A bona fide residence requirement, appropriately defined
and uniformly applied, furthers the substantial state interest in
assuring that services provided for its residents are enjoyed only
by residents .... A bona fide residence requirement simply requires
that the person
does establish residence before demanding
the services that are restricted to residents." The
Martinez
Court explained that "residence" requires "both physical presence
and an intention to remain," see id., at 330, and approved a Texas
law that restricted eligibility for tuition-free education to
families who met this minimum definition of residence, id., at
332-333.
While the physical presence element of a bona fide residence is
easy to police, the subjective intent element is not. It is simply
unworkable and futile to require States to inquire into each new
resident's subjective intent to remain. Hence, States employ
objective criteria such as durational residence requirements to
test a new resident's resolve to remain before these new citizens
can enjoy certain in-state benefits. Recognizing the practical
appeal of such criteria, this Court has repeatedly sanctioned the
State's use of durational residence requirements before new
residents receive in-state tuition rates at state universities.
Starns v.
Malkerson, 401 U. S. 985 (1971), summarily
aff'g 326 F. Supp. 234 (Minn. 1970) (upholding i-year residence
requirement for instate tuition);
Sturgis v.
Washington, 414 U. S. 1057, summarily aff'g 368 F. Supp. 38
(WD Wash. 1973) (same). The Court has declared: "The State can
establish such reasonable criteria for in-state status as to make
virtually certain that students who are not, in fact, bona fide
residents of the State,
518
but have come there solely for educational purposes, cannot take
advantage of the in-state rates."
Vlandis v.
Kline,
412 U. S. 441,
453-454 (1973). The Court has done the same in upholding a i-year
residence requirement for eligibility to obtain a divorce in state
courts, see
Sosna v.
Iowa, 419 U. S. 393, 406-409
(1975), and in upholding political party registration restrictions
that amounted to a durational residency requirement for voting in
primary elections, see
Rosario
If States can require individuals to reside in-state for a year
before exercising the right to educational benefits, the right to
terminate a marriage, or the right to vote in primary elections
that all other state citizens enjoy, then States may surely do the
same for welfare benefits. Indeed, there is no material difference
between a i-year residence requirement applied to the level of
welfare benefits given out by a State, and the same requirement
applied to the level of tuition subsidies at a state university.
The welfare payment here and in-state tuition rates are cash
subsidies provided to a limited class of people, and California's
standard of living and higher education system make both subsidies
quite attractive. Durational residence requirements were upheld
when used to regulate the provision of higher education subsidies,
and the same deference should be given in the case of welfare
payments. See
Dandridge v.
Williams, 397 U. S. 471, 487 (1970)
("[T]he Constitution does not empower this Court to second-guess
state officials charged with the difficult responsibility of
allocating limited public welfare funds among the myriad of
potential recipients").
The Court today recognizes that States retain the ability to
determine the bona fides of an individual's claim to residence, see
ante, at 505, but then tries to avoid the issue. It asserts
that because respondents' need for welfare benefits is unrelated to
the length of time they have resided in California, it has "no
occasion to consider what weight might be given to a citizen's
length of residence if the bona fides of
519
her claim to state citizenship were questioned." See
ibid. But I do not understand how the absence of a link
between need and length of residency bears on the State's ability
to objectively test respondents' resolve to stay in California.
There is no link between the need for an education or for a divorce
and the length of residence, and yet States may use length of
residence as an objective yardstick to channel their benefits to
those whose intent to stay is legitimate.
In one respect, the State has a greater need to require a
durational residence for welfare benefits than for college
eligibility. The impact of a large number of new residents who
immediately seek welfare payments will have a far greater impact on
a State's operating budget than the impact of new residents seeking
to attend a state university. In the case of the welfare
recipients, a modest durational residence requirement to allow for
the completion of an annuallegislative budget cycle gives the State
time to decide how to finance the increased obligations.
The Court tries to distinguish education and divorce benefits by
contending that the welfare payment here will be consumed in
California, while a college education or a divorce produces
benefits that are "portable" and can be enjoyed after individuals
return to their original domicile.
Ibid. But this "you can't
take it with you" distinction is more apparent than real, and
offers little guidance to lower courts who must apply this
rationale in the future. Welfare payments are a form of insurance,
giving impoverished individuals and their families the means to
meet the demands of daily life while they receive the necessary
training, education, and time to look for a job. The cash itself
will no doubt be spent in California, but the benefits from
receiving this income and having the opportunity to become employed
or employable will stick with the welfare recipients if they stay
in California or go back to their true domicile. Similarly, tuition
subsidies are "consumed" in-state but the recipient takes the
benefits of a college education with him wherever
520
he goes. A welfare subsidy is thus as much an investment in
human capital as is a tuition subsidy, and their attendant benefits
are just as "portable." 3 More importantly, this foray into social
economics demonstrates that the line drawn by the Court borders on
the metaphysical, and requires lower courts to plumb the policies
animating certain benefits like welfare to define their "essence"
and hence their "portability." As this Court wisely recognized
almost 30 years ago, "[t]he intractable economic, social, and even
philosophical problems presented by public welfare assistance
programs are not the business of this Court."
Dandridge,
supra, at 487.
I therefore believe that the durational residence requirement
challenged here is a permissible exercise of the State's power to
"assur[e] that services provided for its residents are enjoyed only
by residents."
Martinez, 461 U. S., at 328. The i-year
period established in § 11450.03 is the same period this Court
approved in
Starns and
Sosa. The requirement does not
deprive welfare recipients of all benefits; indeed, the limitation
has no effect whatsoever on a recipient's ability to enjoy the full
5-year period of welfare eligibility; to enjoy the full range of
employment, training, and accompanying supportive services; or to
take full advantage of health care benefits under Medicaid. See
Brief for Petitioners 7-8, 27. This waiting period does not
preclude new residents from all cash payments, but merely limits
them to what they received in their prior State of residence.
Moreover, as the Court recognizes, see
ante, at 497, any
pinch resulting from this limitation during the i-year period is
mitigated by other programs such as homeless assistance and an
increase in food stamp allowance. The i-year period thus
permissibly balances the new resident's needs for subsistence with
the State's need to ensure the bona fides of their claim to
residence.
3 The same analysis applies to divorce.
521
Finally, Congress' express approval in 42 U. S. C. § 604(c) of
durational residence requirements for welfare recipients like the
one established by California only goes to show the reasonableness
of a law like § 11450.03. The National Legislature, where people
from Mississippi as well as California are represented, has
recognized the need to protect state resources in a time of
experimentation and welfare reform. As States like California
revamp their total welfare packages, see Brief for Petitioners 5-6,
they should have the authority and flexibility to ensure that their
new programs are not exploited. Congress has decided that it makes
good welfare policy to give the States this power. California has
reasonably exercised it through an objective, narrowly tailored
residence requirement. I see nothing in the Constitution that
should prevent the enforcement of that requirement.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE joins,
dissenting.
I join THE CHIEF JUSTICE'S dissent. I write separately to
address the majority's conclusion that California has violated "the
right of the newly arrived citizen to the same privileges and
immunities enjoyed by other citizens of the same State."
Ante, at 502. In my view, the majority attributes a meaning
to the Privileges or Immunities Clause that likely was unintended
when the Fourteenth Amendment was enacted and ratified.
The Privileges or Immunities Clause of the Fourteenth Amendment
provides that "[n]o State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States." U. S. Const., Amdt. 14, § 1. Unlike the Equal Protection
and Due Process Clauses, which have assumed near-talismanic status
in modern constitutional law, the Court all but read the Privileges
or Immunities Clause out of the Constitution in the
Slaughter-House Cases, 16 Wall. 36 (1873). There, the Court
held that the State of Louisiana had not abridged
522
the Privileges or Immunities Clause by granting a partial
monopoly of the slaughtering business to one company.
I d.,
at 59-63, 66. The Court reasoned that the Privileges or Immunities
Clause was not intended "as a protection to the citizen of a State
against the legislative power of his own State."
Id., at 74.
Rather the "privileges or immunities of citizens" guaranteed by the
Fourteenth Amendment were limited to those "belonging to a citizen
of the United States as such."
Id., at 75. The Court
declined to specify the privileges or immunities that fell into
this latter category, but it made clear that few did. See id., at
76 (stating that "nearly every civil right for the establishment
and protection of which organized government is instituted,"
including "those rights which are fundamental," are not protected
by the Clause).
Unlike the majority, I would look to history to ascertain the
original meaning of the Clause.1 At least in American law, the
phrase (or its close approximation) appears to stem
1 Legal scholars agree on little beyond the conclusion that the
Clause does not mean what the Court said it meant in 1873. See,
e. g., Harrison, Reconstructing the Privileges or Immunities
Clause, 101 Yale L. J. 1385, 1418 (1992) (Clause is an
antidiscrimination provision); D. Currie, The Constitution in the
Supreme Court 341-351 (1985) (same); 2 W. Crosskey, Politics and
the Constitution in the History of the United States 10891095
(1953) (Clause incorporates first eight Amendments of the Bill of
Rights); M. Curtis, No State Shall Abridge 100 (1986) (Clause
protects the rights included in the Bill of Rights as well as other
fundamental rights); B. Siegan, Supreme Court's Constitution 46-71
(1987) (Clause guarantees Lockean conception of natural rights);
Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J.
453, 521-536 (1989) (same); J. Ely, Democracy and Distrust 28
(1980) (Clause "was a delegation to future constitutional
decision-makers to protect certain rights that the document neither
lists ... or in any specific way gives directions for finding"); R.
Berger, Government by Judiciary 30 (2d ed. 1997) (Clause forbids
race discrimination with respect to rights listed in the Civil
Rights Act of 1866); R. Bork, The Tempting of America 166 (1990)
(Clause is inscrutable and should be treated as if it had been
obliterated by an ink blot).
523
from the 1606 Charter of Virginia, which provided that "all and
every the Persons being our Subjects, which shall dwell and inhabit
within every or any of the said several Colonies ... shall HAVE and
enjoy all Liberties, Franchises, and Immunities ... as if they had
been abiding and born, within this our Realme of
England." 7
Federal and State Constitutions, Colonial Charters and Other
Organic Laws 3788 (F. Thorpe ed. 1909). Other colonial charters
contained similar guarantees.2 Years later, as tensions between
England and the American Colonies increased, the colonists adopted
resolutions reasserting their entitlement to the privileges or
immunities of English citizenship.3
2 See 1620 Charter of New England, in 3 Thorpe, at 1839
(guaranteeing "[l]iberties, and ffranchizes, and Immunities of free
Denizens and naturall Subjects"); 1622 Charter of Connecticut,
reprinted in 1 id., at 553 (guaranteeing "[l]iberties and
Immunities of free and natural Subjects"); 1629 Charter of the
Massachusetts Bay Colony, in 3 id., at 1857 (guaranteeing the
"liberties and Immunities of free and naturall subjects"); 1632
Charter of Maine, in 3 id., at 1635 (guaranteeing "[l]iberties[,]
Francheses and Immunityes of or belonging to any of the naturall
borne subjects"); 1632 Charter of Maryland, in 3 id., at 1682
(guaranteeing "Privileges, Franchises and Liberties"); 1663 Charter
of Carolina, in 5 id., at 2747 (holding "liberties, franchises, and
privileges" inviolate); 1663 Charter of the Rhode Island and
Providence Plantations, in 6 id., at 3220 (guaranteeing "libertyes
and immunityes of ffree and naturall subjects"); 1732 Charter of
Georgia, in 2 id., at 773 (guaranteeing "liberties, franchises and
immunities of free denizens and natural born subjects").
3 See,
e. g., The Massachusetts Resolves, in Prologue to
Revolution:
Sources and Documents on the Stamp Act Crisis 56 (E. Morgan ed.
1959)
("Resolved, That there are certain essential Rights of
the
British Constitution of Government, which are founded in
the Law of God and Nature, and are the common Rights of
Mankind-Therefore, ...
Resolved that no Man can justly take
the Property of another without his Consent ... this inherent
Right, together with all other essential Rights, Liberties,
Privileges and Immunities of the People of Great Britain have been
fully confirmed to them by
Magna Charta"); The Virginia
Resolves,
id., at 47-48 ("[T]he Colonists aforesaid are
declared entitled to all Liberties, Privileges, and Immunities of
Denizens and natural Subjects, to all Intents and Purposes, as if
they had been abiding and born within the Realm of
England"); 1774 Statement of Violation of Rights, 1 Journals
of the
524
The colonists' repeated assertions that they maintained the
rights, privileges, and immunities of persons "born within the
realm of England" and "natural born" persons suggests that, at the
time of the founding, the terms "privileges" and "immunities" (and
their counterparts) were understood to refer to those fundamental
rights and liberties specifically enjoyed by English citizens and,
more broadly, by all persons. Presumably members of the Second
Continental Congress so understood these terms when they employed
them in the Articles of Confederation, which guaranteed that "the
free inhabitants of each of these States, paupers, vagabonds and
fugitives from justice excepted, shall be entitled to all
privileges and immunities of free citizens in the several States."
Art. IV. The Constitution, which superceded the Articles of
Confederation, similarly guarantees that "[t]he Citizens of each
State shall be entitled to all Privileges and Immunities of
Citizens in the several States." Art. IV, § 2, cl. 1.
Justice Bushrod Washington's landmark opinion in
Corfield
v.
Coryell, 6 F. Cas. 546 (No. 3,230) (CCED Pa. 1825),
reflects this historical understanding. In
Corfield, a
citizen of Pennsylvania challenged a New Jersey law that prohibited
any person who was not an "actual inhabitant and resident" of New
Jersey from harvesting oysters from New Jersey waters.
Id.,
at 550. Justice Washington, sitting as Circuit Justice, rejected
the argument that the New Jersey law violated Article IV's
Privileges and Immunities Clause. He reasoned, "we cannot accede to
the proposition ... that, under this provision of the constitution,
the citizens of the several states are permitted to participate in
all the rights
Continental Congress 68 (1904) ("[O]ur ancestors, who first
settled these colonies, were at the time of their emigration from
the mother country, entitled to all the rights, liberties, and
immunities of free and natural-born subjects, within the realm of
England ... Resolved ... [t]hat by such emigration they by no means
forfeited, surrendered or lost any of those rights").
525
which belong exclusively to the citizens of any other particular
state, merely upon the ground that they are enjoyed by those
citizens."
Id., at 552. Instead, Washington concluded:
"We feel no hesitation in confining these expressions to those
privileges and immunities which are, in their nature, fundamental;
which belong, of right, to the citizens of all free governments;
and which have, at all times, been enjoyed by the citizens of the
several states which compose this Union, from the time of their
becoming free, independent, and sovereign. What these fundamental
principles are, it would perhaps be more tedious than difficult to
enumerate. They may, however, be all comprehended under the
following general heads: Protection by the government; the
enjoyment of life and liberty, with the right to acquire and
possess property of every kind, and to pursue and obtain happiness
and safety; subject nevertheless to such restraints as the
government may justly prescribe for the general good of the whole.
The right of a citizen of one state to pass through, or to reside
in any other state, for purposes of trade, agriculture,
professional pursuits, or otherwise; to claim the benefit of the
writ of habeas corpus; to institute and maintain actions of any
kind in the courts of the state; ... and an exemption from higher
taxes or impositions than are paid by the other citizens of the
state; ... the elective franchise, as regulated and established by
the laws or constitution of the state in which it is to be
exercised. These, and many others which might be mentioned, are,
strictly speaking, privileges and immunities." Id., at
551-552.
Washington rejected the proposition that the Privileges and
Immunities Clause guaranteed equal access to all public benefits
(such as the right to harvest oysters in public waters) that a
State chooses to make available. Instead, he
526
endorsed the colonial-era conception of the terms "privileges"
and "immunities," concluding that Article IV encompassed only
fundamental rights that belong to all citizens of the United
States.4
Id., at 552.
Justice Washington's opinion in
Corfield indisputably
influenced the Members of Congress who enacted the Fourteenth
Amendment. When Congress gathered to debate the Fourteenth
Amendment, Members frequently, if not as a matter of course,
appealed to
Cor field, arguing that the Amendment was
necessary to guarantee the fundamental rights that Justice
Washington identified in his opinion. See Harrison, Reconstructing
the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418
(1992) (referring to a Member's "obligatory quotation from
Cor
field"). For just one example, in a speech introducing the
Amendment to the Senate, Senator Howard explained the Privileges or
Immunities Clause by quoting at length from
Corfield.5 Congo
Globe, 39th Cong., 1st Sess., 2765 (1866). Furthermore, it appears
that no Member of Congress refuted the notion that Washington's
analysis in
Corfield undergirded the meaning of the
Privileges or Immunities Clause.6
4 During the first half of the 19th century, a number of legal
scholars and state courts endorsed Washington's conclusion that the
Clause protected only fundamental rights. See,
e. g.,
Campbell v.
Morris, 3 H. & McH. 535, 554 (Md. 1797)
(Chase, J.) (Clause protects property and personal rights);
Douglass v.
Stephens, 1 Del. Ch. 465, 470 (1821)
(Clause protects the "absolute rights" that "all men by nature
have"); 2 J. Kent, Commentaries on American Law 71-72 (1836)
(Clause "confined to those [rights] which were, in their nature,
fundamental"). See generally Antieau, Paul's Perverted Privileges
or the True Meaning of the Privileges and Immunities Clause of
Article Four, 9 Wm. & Mary L. Rev. 1, 18-21 (1967) (collecting
sources).
5 He also observed that, while the Supreme Court had not
"undertaken to define either the nature or extent of the privileges
and immunities," Washington's opinion gave "some intimation of what
probably will be the opinion of the judiciary." Congo Globe, 39th
Cong., 1st Sess., 2765 (1866).
6 During debates on the Civil Rights Act of 1866, Members of
Congress also repeatedly invoked
Corfield to support the
legislation. See generally Siegan, Supreme Court's Constitution, at
46-56. The Act's sponsor,
527
That Members of the 39th Congress appear to have endorsed the
wisdom of Justice Washington's opinion does not, standing alone,
provide dispositive insight into their understanding of the
Fourteenth Amendment's Privileges or Immunities Clause.
Nevertheless, their repeated references to the
Corfield
decision, combined with what appears to be the historical
understanding of the Clause's operative terms, supports the
inference that, at the time the Fourteenth Amendment was adopted,
people understood that "privileges or immunities of citizens" were
fundamental rights, rather than every public benefit established by
positive law. Accordingly, the majority's conclusion-that a State
violates the Privileges or Immunities Clause when it
"discriminates" against citizens who have been domiciled in the
State for less than a year in the distribution of welfare
benefits-appears contrary to the original understanding and is
dubious at best.
As THE CHIEF JUSTICE points out,
ante, at 511, it comes
as quite a surprise that the majority relies on the Privileges or
Immunities Clause at all in this case. That is because, as I have
explained
supra, at 521-522, the
Slaughter-House
Cases sapped the Clause of any meaning. Although the majority
appears to breathe new life into the Clause today, it fails to
address its historical underpinnings or its place in our
constitutional jurisprudence. Because I believe that the demise of
the Privileges or Immunities Clause has contributed in no small
part to the current disarray of our Four-
Senator Trumbull, quoting from
Gorfield, explained that
the legislation protected the "fundamental rights belonging to
every man as a free man, and which under the Constitution as it now
exists we have a right to protect every man in." Congo Globe,
supra, at 476. The Civil Rights Act is widely regarded as
the precursor to the Fourteenth Amendment. See,
e. g., J.
tenBroek, Equal Under Law 201 (rev. ed. 1965) ("The one point upon
which historians of the Fourteenth Amendment agree, and, indeed,
which the evidence places beyond cavil, is that the Fourteenth
Amendment was designed to place the constitutionality of the
Freedmen's Bureau and civil rights bills, particularly the latter,
beyond doubt").
528
teenth Amendment jurisprudence, I would be open to reevaluating
its meaning in an appropriate case. Before invoking the Clause,
however, we should endeavor to understand what the Framers of the
Fourteenth Amendment thought that it meant. We should also consider
whether the Clause should displace, rather than augment, portions
of our equal protection and substantive due process jurisprudence.
The majority's failure to consider these important questions raises
the specter that the Privileges or Immunities Clause will become
yet another convenient tool for inventing new rights, limited
solely by the "predilections of those who happen at the time to be
Members of this Court."
Moore v.
East Cleveland,
431 U. S. 494,
502 (1977).
I respectfully dissent.
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